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82 Cards in this Set
- Front
- Back
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Units 6 & 7 |
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A - How the English legal system works
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Equitable doctrines
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refers to the principles used in equity which are:
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(a) equity looks on that as done which ought to be done: in other words, equity will enforce the intention of the parties, rather than allowing something to founder because of a failure to conform to rigid procedure
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(b) he who comes to equity must come with clean hands: accordingly, an equitable remedy will nor be granted to a claimant who has not acted farily
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(c) delay defeats equity: as a consequence, a claimant cannot wait too long before making a claim as this may prejudice the other party
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(d) Equity will not suffer a wrong to be without a remedy
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a vital part of mortgage law which necesitates that a lender must apply to a court to forclose on a mortgage is called
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Equity of redemption
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a proposed beneficiary's rights to anything held in trust for them, rather than the trustee is recognised as the
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Rights of the beneficiary under trust
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A common law remedy is a matter of right and if
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a claimant proves their case in common law they are entitled to damages
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An equitable remedy is discretionary and the court decision is
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depedent on factors such as the beneficiary's conduct
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Two forms of equitable remedy which are still important are
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(1) an injunction, which is an order of the court compelling a person to perform an action or to refrain from an action, for example to demolish a building which has been erected in breach of a promise not to build on land
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(2) a decree of specific performance, which is an order compelling someone to perform their obligations under a contract or trust
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What term refers to a remedy for damages, which is used when common law remedy is inadequate in its compensation
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Specific performance (Audio,1)
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Specific performance is not usually applied to
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contracts concerning the sale of good where replacements are readily available, although; C H Giles & Co Ltd v Morris and others 1972 demonstartes a departure from this
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Specific performance is
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most commonly granted in cases involving land
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Specific performance not usually granted in
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personal services and contract requiring constant supervision by the court
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Equity and Common Law was fused
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in the Supreme Court of Judicature Acts of 1873
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Where conflict arises Equity prevails over common law
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under s. 49 of the Senior Courts Act 1981
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B The modern court system and civil and criminal procedure
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Superior courts have unlimited jurisdiction
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geographically and financially
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Inferior courts have limited jurisdiction geographically and financially
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geographically and financially
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The inferior courts are:
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1. County Court
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2. Magistrates' Court
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3. Coroners' Courts
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4. Courts-Martial
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The majority of courts deal with criminal and civil cases except:
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1. Crown Court (almost exclusively criminal cases)
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2. County Court (civil matters only)
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Distinguish between trial and appellate courts
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Trial courts make the first ruling
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on any given legal matter
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Appellate courts (Appeal Courts) reconsider
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any given decision of a lower court
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C The legal profession
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Identify the various members of the legal profession in the English legal system:
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(i) Barristers
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(ii) Solicitors
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Barristers are essentially
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consultants offering specialised services an an advocate and giving opinions
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the barristers professional organisation is
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The General Council of the Bar
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barristers are regulated by the
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the Bar Standards Board
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Solicitors are
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the first point of legal contact for the general public
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a solicitor generally engages the services of a barrister
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as generally a client cannot employ them directly but;
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certain professionals can directly employ the services of a barrister e.g. Accountants
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the solicitors professional organisation is
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The Law Society
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solicitors are regulated by the
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Solicitors Regulation Authority
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The Courts and Legal services Act 1990 extended the right to appear in court to
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any profession licensed to do so e.g. Solicitors, legal executives etc
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Criminal Case Review Authority is an
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Idependent body which reviews cases of appeal
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due to the Legal Services Act 2007 an independent Legal Services Board oversees the regulation of both branches of the profession
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the Office for Legal Complaints offers redress to individual consumers regarding the provision of legal services
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What term refers to the idea that judges do not make law they simply state it
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The declaratory theory of law
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Criticisms of the Judiciary are
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(i) Unconstitutionality which is;
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a fundamental question that refers to the fact that the judiciary are overstepping their theoretical constitutional role by actually making law rather than restricting themselves to the role of simply applying it.
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(ii)Personal Bias which can consist of
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(a)Personal prejudice
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influencing judgment and effective application of law
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(b)Individual morality of judgment
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creating inconsistency and injustice
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(c)The influence of sexist and racist opinions
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infiltrating the judicial system
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Corporate Bias which asserts that:
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(a)Judges as a group decide
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certain types of cases in a biased way
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(b) the problem of Coporate Bias is
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systematic rather than the result of maverick judges
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(c) If true entails a
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a complete change in the judicial system
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(d) Lack of social diversity amongst judges has
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promoted a common outlook
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(e) In making judgment of greater public importance they
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impose there own corporate values
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(f) Protects the establishment which infers
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that judicial independence is a myth
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D The jury
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What is the role of a jury in civil and criminal actions
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A jury weighs up the evidence and decides on what are the true fact of a case
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Anyone can sit on a jury who:
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(a) has been resident in the UK since the age of 13
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(b)on the electoral role and aged between 18 and 70
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Who cannot sit on jury
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(a) anyone suffering from a mental disorder
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(b) members of the clergy, or involved in the administration of justice
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(c) ex offender with more than five years of imprisonment or been sentenced in the last 10 years |
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(d) anyone successfully pleads for excusal from jury duty
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Under s. 69 of the Senior Courts Act 1981 A Civil jury is only available at the discretion of the court in cases of:
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(a)fraud
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(b)libel and slander
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(c)malicious prosecution
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(d) false imprisonment
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Advantages of Jury system
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(i) democratising effect on the
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operation of the legal system
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(ii) public play a part in
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in the administration of justice
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(iii) the presence of the jury means the trial judge has
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to explain and clarify the law
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(iv) transparency regarding public access to
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the decision making process
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Disadvantages of jury system
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(i)The individual ignorance or prejudice of
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individual jurors |
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(ii) disproportionate awards of damages
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in liable and slander cases
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(iii) easily influenced by
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experienced advocates
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(iv) compulsory element of
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jury service
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(v) intimidation and tampering
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of the jury
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(vi) appeal is difficult because
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jury verdicts are unexplained
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Criminal Jury
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most often found in the Crown Court
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prosecution can apply to court for trial without jury when
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substantial risk of jury tampering may exist
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Challenge of jurors
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refers to the prosecution and defence's right to challenges a jurors right to serve on grounds of ineligibility, bias or disqualification
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Becoming a juror
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A court official will select 12 random people from a room of 15 people, whom will then be sworn in and may or may not be challenged by the defence or prosecution
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